David A. Plymyer: Political, Social & Random Commentary

Gut reactions – Freddie Gray trials in the city.

There are some gut reactions that come to mind in light of the decision by Judge Barry Williams to attempt to impanel juries in Baltimore to try the defendants in the cases resulting from the death of Freddie Gray. First, my guess is that Judge Williams knows in his gut that it will be difficult if not impossible to find fair and impartial juries from a pool of jurors who reside in the city. Other gut reactions that come to mind are the sinking feelings in the pits of the defendants’ stomachs. I am sure that they believe that their chances of getting a fair trial have now diminished.

The problem is not the taint of pretrial publicity. Information no longer travels merely by word of mouth or the printed page. In the Digital Age people in Garrett County got the news about the death of Freddie Gray and the subsequent riots as quickly as did residents of the city. In this case there is something far more prejudicial, and that will be the pressure felt by jurors residing in the city to return guilty verdicts to satisfy the expectations (and in some cases the thirst for vengeance) of their neighbors.

There are abhorrent crimes that generate heated emotions, but nothing comparable to the widespread visceral feelings arising from Freddie Gray’s death. When is the last time that stores were looted and burned and police officers attacked with rocks because of the actions of a serial murderer or child molester? For many citizens of the city this is very, very personal, and taps into an anger that simmers not far beneath the surface. It takes little to turn that anger into rage.

For jurors living in some neighborhoods the pressure will be even greater. How would you feel upon returning to your home in Sandtown-Winchester after voting to acquit one of the defendants? Ostracism could be the least of your worries. The harsh reality in the City of Baltimore is that jurors may need physical as well as moral courage. The situation is likely to get worse if the first defendant to go to trial is acquitted, because it is unrealistic to believe that the acquittal would not lead to riots or some other form of violent demonstration. How could an acquittal followed by a riot in the city not prey on the minds of subsequent jurors who live in the city? Even if he is successful in impaneling a jury from the city for the first one or two trials, Judge Williams may find himself unable to do so for the later trials.

My own gut reaction is that State’s Attorney Marilyn Mosby did her part to make life as difficult as possible for the prospective jurors with her overheated rhetoric and by implying that part of her duty was to appease the rioters by quickly bringing charges against the police officers. She also appears to have overreached by charging Off. Caesar Goodson, Jr. with second degree murder. Few experienced prosecutors and criminal defense lawyers believe that she did so for any reason other than dramatic effect: “Murder” was the word that her audience wanted to hear. In my opinion Ms. Mosby not only allowed herself to be swept along by a tide of emotion she exacerbated it. She basically set up the jurors, who will be required to do what she could not bring herself to do: Carefully and dispassionately apply the law to the facts without regard to the consequences “on the street.”

I am left with the concern that we may be asking too much from jurors living in the city to put the events of April and the feelings of their neighbors out of their minds while deliberating the guilt or innocence of the defendant police officers. If an officer is convicted by a Baltimore jury under circumstances in which the evidence of guilt is equivocal there will be one more stain on the reputation of the city.